By Fernella Wedderburn and Emmanuel Joseph
A High Court judge has struck down a regulation that prohibited all public servants from actively participating in politics, ruling it unconstitutional.
Justice Westmin James said on Tuesday that General Order 3.18.1 is also “inconsistent” with the rights to freedom of expression and association which are enshrined in the Constitution of Barbados.
“The regulation is overly broad, disproportionate and cannot be reasonably justified in a free and democratic society,” he added.
In an immediate reaction, Attorney General Dale Marshall told Barbados TODAY that when he is able to properly study the decision, he will “advise Cabinet of the import of the decision and make recommendations on how we should amend the regulations”.
“We now have to consider as a matter of policy how the matter should be approached,” he said.
Justice James made the declaration in a 13-page judgment as he ruled in favour of temporary household facilitator in the Ministry of People Empowerment and Elder Affairs Natalie Murray who had sought constitutional relief after disciplinary action was contemplated against her after she spoke on a Barbados Labour Party (BLP) platform during the 2022 general election.
He also ruled that any disciplinary proceedings brought against Murray be “permanently stayed”.
Through her lawyers, prominent attorney Gregory Nicholls and counsel Kashawn Wood, Murray had challenged the constitutionality of the provision in the General Orders that forbids public officers and employees from participating actively in politics, including speaking at political meetings.
She contended that it was a breach of her constitutional rights to freedom of expression and freedom of association under Sections 20 and 21 of the Constitution of Barbados, respectively.
In a letter dated March 8, 2022, signed by the Permanent Secretary in the Ministry of People Empowerment and Elder Affairs, Murray was informed that a disciplinary report was submitted regarding her appearance as a speaker on the political platform of the BLP on January 6 and 16, 2022. She was told that her actions were in breach of the General Orders and the Public Service Act Code of Discipline.
Murray accepted that she appeared on the BLP’s political platform and admitted that she had been an active member of the party for over 20 years.
However, she contended that her participation in political activity had never hindered her effectiveness as a social worker or community organiser.
In his ruling, Justice James said that the regulation was not reasonably required for the proper performance of public officers’ functions in the context of any of the permissible limitations prescribed by Sections 20 and 21 of the Constitution.
He further referred to the particular General Order as a “blanket restriction”.
General Order 3.18.1 states that officers and employees are expressly forbidden to participate actively in politics, including being adopted as a parliamentary candidate, canvassing on behalf of any party or candidate; acting as agents or sub-agents of any candidate for election; holding office in party political organisations; and speaking at political meetings.
“It is plain to the Court that General Order 3.18.1 is a sweeping, blanket ban, permitting of no exceptions. The restriction is absolute and universal to all public servants from lower level public servants . . . to the highest rank public servant. This sort of blanket restriction does not satisfy the qualification in the Constitution that the restriction be reasonably required for the proper performance of their function. It is therefore inconsistent with the general right guaranteed by freedom of expression and association,” Justice James said.
“In the circumstances, I hold that General Order 3.18.1 has not satisfied the criterion of being reasonably required as it is disproportionate in not distinguishing between classes of civil servants as to the restraints imposed on freedom of expression and/or the types of political activity. It is therefore void for unconstitutionality.”
As a result, the judge said the charge brought against Murray was “an invalid charge”.
“It amounts to a hindrance to her right to freedom of expression and association guaranteed under Sections 20 and 21 of the Barbados Constitution and is an improper and invalid restriction upon her as a lower-level public officer,” he said.
Also included in Justice James’ ruling was that costs associated with Murray’s claim for constitutional relief be assessed, if not agreed.
Last year, two teachers – Alwyn Babb and Pedro Shepherd – faced disciplinary action after contesting the 2022 general elections on a Democratic Labour Party (DLP) ticket.
Pointing out that the State will now have to revisit the regulations, Nicholls told Barbados TODAY: “I would say there should be no unbridled celebration that in the absence of these regulations there would be a free-for-all.”
“Government would have to tailor the appropriate regulations, as suggested by the court, and the legal authorities which we submitted to the court for review and consideration…you are going to have to look at these things. The main argument is that you can’t have blanket restrictions on public officers who participate in politics,” he asserted.
The Attorney General, against whose office the action was brought, said while has not yet had an opportunity to study Justice James’ reasoning, he is not surprised by his ruling.
“As the jurisprudence on Caribbean constitutions continues to develop, we will see many of the long held thinking on rights and freedoms being modified or even being rejected outright. Such has been the case with the mandatory death penalty, buggery laws and now public service regulations,” he told Barbados TODAY.
“If anything, it is a signal to us that the time is ripe for the Constitution Reform Commission to conduct its analysis on the provisions of our Constitution and, among other things, to measure our laws in the light of judicial decisions.
“This is not the first case in the region where similar prohibition of public servants becoming involved in the political process has been ruled to be unconstitutional so I would not say that I am entirely surprised at the ruling,” the Government’s chief legal adviser added.
fernellawedderburn@barbadostoday.bb
emmanueljoseph@barbadostoday.bb
